TMI Blog2011 (7) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel. By means of these revisions, the revisionist has assailed the order dated April 19, 2011, passed by the Commercial Tax Tribunal in Second Appeal Nos. 212 of 2011 and 213 of 2011 for the assessment year 2005-06 under the U.P. Trade Tax Act and Central Sales Tax Act, respectively. Since common questions of law and facts are involved in both the revisions and further the order impugned is dated April 19, 2011, as such, they are being decided by a common order. Brief facts of the revisionist's case are that the revisionist is a public limited company incorporated under the Indian Companies Act having its registered office at Mumbai and is engaged in manufacturing motor vehicles/ motor chassis from its factory situate at Chinhat, Deva Road, Lucknow. The motor vehicles are taxable at single point, i.e., at the point of sale to consumer. During the assessment year 2005-06, certain stock was transferred by the revisionist-company to its branch office and consignment agents located outside the State of U.P. and as such, form F are required to be issued under section 6A of the Central Sales Tax Act. Forms F are obtained from respective branch offices/consignment age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1957 replaces the sales tax levied, the levy of turnover tax cannot occupy the field of the Additional Duties of Excise Act. Consequently, the entire exercise is contrary to the provisions of the Constitution. Countering the said claim, the respondent, in their counter-affidavit, contended that given the definition of total turnover under the provisions of the Act and that the levy of turnover tax under section 4A is on the total turnover of the dealer, even the exempted turnover would also fall for consideration under the concept of total turnover. Apart from that, the additional duties of excise under the Additional Duties of Excise (Goods of Special Importance) Act, 1957, by itself, does not tie the hands of the State Government from levying the turnover tax. Considering the fact that section 4A is a code by itself, the liability to pay turnover tax arises irrespective of whether the assessee is liable to pay any sales tax or not and that includes the goods suffering duties of additional excise. Thus all that the Central Act states is that, wherever the State collects tax under the local enactment, the benefit of additional excise levied would not enure to the benefit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turnover tax under section 4A. He further pointed out to the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, that as per the said Act, the State would be debarred from levying tax under the State enactment, if it is in receipt of additional duties of excise levied by the Central Government. As far as the Pondicherry Administration is concerned, it has not been in receipt of any collection of additional duties of excise on cigarettes. In the light of the above, the question of reading any unconstitutionality in the notification does not arise. Given the fact that the State is competent to levy turnover tax under section 4A of the Pondicherry General Sales Tax Act and to grant exemption under section 19 either absolutely or subject to terms and conditions and that section 9 specifies goods included in the Third Schedule exempted from payment of any tax under the Act, no exception could be taken to the notification issued by the Government. He also placed reliance on the decisions reported in [1998] 111 STC 420 (SC); [1998] 7 SCC 237 (Sun Oil Company (P) Ltd. v. State of West Bengal) and [2010] 11 SCC 1 (Union of India v. Madras Bar Associati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 2(q) and total turnover as defined under section 2(r). The said definitions read as follows: 2. (q) 'taxable turnover' means the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed, but shall not include the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India; 2. (r) 'total turnover' means the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax, including the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India. Section 3 is the charging provision relating to payment of general sales tax under the Act. Section 4A deals with levy of turnover tax. The notification with which we are concerned herein relates to exemption fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r provisions of this Act. (3) Notwithstanding anything contained in section 25, no dealer, shall collect from his purchaser the turnover tax payable by him under this section. Section 4A starts with a non obstante clause that notwithstanding anything contained in the Act or the Rules made thereunder, every dealer under the Act has to pay turnover tax at the rate of three per cent on the total turnover. The section contains a proviso to exclude inter-State sale, sale in the interest of the country of India or import into the territory of India, freight charges separately specified and turnover not includible in the total turnover. As already seen, total turnover , as defined under section 2(r), means the aggregate turnover of a dealer in all goods, i.e., the amount for which goods are bought or sold, as given under the definition of turnover under section 2(s). In contrast to section 3, the charging section, which levies general sales tax on the taxable turnover, levy of turnover tax is on the total turnover of the dealer as computed in accordance with the definition of total turnover under the Act. Thus going by the said definition, irrespective of the liability to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same has to be read with reference to the conditions and restrictions imposed under section 19. In so holding, we are in entire agreement with the view expressed by the learned single judge in the order dated October 8, 1999 in W.P.No. 15808 of 1999 (Lakshmi Agencies, Yanam, by its Managing Partner v. Union Territory of Pondicherry). As regards the contention based on the Additional Duties of Excise (Goods of Special Importance) Act, 1957, we do not find any repugnancy between the notification and the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The assessee contends that the State has no competence to bring cigarettes within the ambit of turnover tax. The said argument rests on the premise that cigarettes attract the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, that when once there is an additional duty of excise leviable on the assessee, there cannot be a levy of turnover tax. We do not find any justification to accept the said contention. The proviso under the Second Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957, reads as follows: 2. Tobacco. During the financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds described in column 3 of the First Schedule after deducting therefrom a sum equal to 2.391 per cent of the said proceeds as being attributable to Union territories, as is set out against it in column 2: Provided that if during that financial year there is levied and collected in any State a tax on the sale or purchase of sugar, tobacco, cotton fabrics, silk fabrics, woollen fabrics and man-made fabrics or one or more of them by or under any law of that State, no sums shall be payable to that State under this paragraph in respect of that financial year, unless the Central Government by special order otherwise directs. Thus, the Additional Duties of Excise (Goods of Special Importance) Act, 1957, contemplates that where in the financial year, there is a levy and collection of tax under a State law on the sale or purchase of tobacco by or under any law of that State, the said State shall not be entitled to any share as regards the collection of additional duties and excise. Thus while Additional Duties of Excise (Goods of Special Importance) Act, 1957 does not bar the State from levying any tax and collecting the same in respect of the goods attracting additional duties of exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e light of the order passed by this court rejecting the prayer of the writ petitioner on the challenge made to the notification, we have no hesitation in rejecting the writ appeal, thereby confirming the view of this court in W.P.No. 15808 of 1999. Consequently W. A. No. 77 of 1999 stands rejected. As far as W.P.No. 2991 of 2001 is concerned, the said writ petition relates to the challenge made to the assessment order passed, relating to the assessment year 1999-2000 under assessment order No. 75 dated January 12, 2001. In the light of the order passed in W.P.No. 18038 of 1999, the said writ petition, challenging the assessment order, stands dismissed. Having regard to the fact that the petitioner has approached this court immediately after the receipt of the assessment order dated January 12, 2001, in fitness of things, we grant the assessee four weeks' time to file an appeal, from the date of receipt of the order of this court, if the assessee desires to file an appeal as against the order of assessment. In the result, W.P.No. 18038 of 1999, W.A. No. 77 of 2000 and W.P. No. 2991 of 2001 stand dismissed. No costs. Connected W.M.P. No. 26244 of 1999 also stands dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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